What DNA can and cannot say: perspectives of immigrant families about the use of genetic testing in immigration.

Author:Barata, Llilda P.
 
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INTRODUCTION I. BACKGROUND A. Implementation of the DNA Testing Policy B. Testing Procedures II. EXPERIENCES WITH DNA TESTING IN FAMILY REUNIFICATION A. Participants B. Recruitment C. Data Collection D. Data Management and Analysis E. Enrolled Families III. RESULTS A. Testing in the Absence of Documentation and Government Infrastructure B. Cost and Time C. Understanding DNA Testing D. Challenges with Interpreting Results E. Negative Results and Family Identity IV. DISCUSSION V. RECOMMENDATIONS A. Provide Information About DNA Testing at the Beginning of the Immigration Process B. Emphasize the Voluntary Nature of DNA Testing C. Educate Immigration Lawyers about DNA Testing D. Make the DNA Test More Affordable to Families and Improve its Processing Time E. Explain Test Results in Accessible Language F. Protect the Privacy and Confidentiality of Petitioners and Beneficiaries G. Provide Avenues of Support to Cope with Unexpected DNA Test Results H. Accept Alternative Means of Establishing Relationships I. Implementation and Costs of Recommendations VI. STUDY LIMITATIONS CONCLUSION INTRODUCTION

Mr. Ahmed (1) emigrated as a refugee from Africa to the United States after being separated from his family during his country's civil war. His child stayed behind. Shortly after becoming a U.S. resident, Mr. Ahmed petitioned the U.S. Citizenship and Immigration Services (USCIS) to bring his child under the family reunification provision of the Immigration and Nationality Act (INA). (2) His child's birth certificate had been lost during the unrest of his country's civil war; therefore, he did not have the required documentation to prove his relationship to his son. (3) As a result, an immigration officer asked Mr. Ahmed to take a DNA test (4) to verify the claim in his immigration petition that he was the child's biological father. (5) DNA test results showed, however, that he was not the biological father of the child. This unexpected finding left him struggling emotionally and carried significant negative consequences for his child. It also made the prospect of reuniting with his child difficult, if not impossible.

Mr. Ahmed's story illustrates how genetic technologies are being used to address issues with verifying identity and family relationships for immigration purposes. (6) The administrative implementation of a policy governing the use of DNA testing for immigration purposes first occurred in 2000, making such testing available as a tool to resolve issues of suspected fraud, stolen identities, and inadequate documentation in family reunification cases. (7) The possibility of fraud is a concern in the current document-based system for validating family relationships. (8) Genetic testing is perceived as an effective way to screen out fraud, making the process of family reunification less onerous for immigration officials and immigrant families and more accessible for applicants who lack documentary evidence. (9)

Although there has been some discussion in the literature about genetic testing in immigration (10) and the potential effects it may have on immigrant families, empirical evidence is needed to better understand immigrants' experiences with genetic testing in the immigration context, their attitudes towards it, and the consequences that can result from their experiences with test results. To address these questions, we conducted interviews with immigrant families who have been through genetic testing for family reunification to develop a fuller picture of the issues surrounding the application of genetic testing for family reunification. In this article, we provide background information about the current use of genetic testing in immigration and describe experiences of families with testing, including the positive and negative impact test results have had on those individuals and their families.

Based on the data gathered in this study, we present a set of recommendations for ways in which genetic testing can be applied in immigration cases that minimize its potential negative impact and increase its benefits. Our interviews reveal that genetic testing can make the process of family reunification more accessible for immigrants who lack proper documentation. However, DNA testing can also prevent the legitimate reunification of some families and cause significant harm to their welfare. Therefore, we argue that information about DNA and the possibility of DNA testing should be provided at the beginning of the family reunification process, while recognizing that its use may be relevant only in a minority of cases. The information provided should include sufficient explanation about the nature of the test and testing process, how results are presented, and the possible positive and negative consequences of testing to permit petitioners and beneficiaries to give informed consent. Additionally, the voluntary nature of the test should be emphasized. Furthermore, we recommend that immigration lawyers be educated about the test, the testing process, and the potential positive and negative consequences of test results so they can better advise their clients.

  1. BACKGROUND

    Immigration for the purposes of family reunification is provided for in the INA. (11) This provision grants citizens and legal permanent residents the benefit of petitioning for certain relatives to immigrate to the United States. (12) It gives immigration priority to immediate family members, (13) such as children, spouses, parents, and siblings, and accounts for the majority of immigrant visas in the United States. In 2012, sixty-six percent of immigrants who became legal permanent residents in the United States were family petitioned. (14) The reunification provision has been valued as an important component of U.S. immigration policy, benefiting both the immigrant population living in the United States and the United States as a whole. (15) The INA allocates an annual quota of visas for family reunification. (16)

    U.S. citizens and legal permanent residents (17) (LPRs) (the petitioners) who formally petition that a relative be permitted to immigrate to the United States must have proof of their claimed family relationship with that relative (the beneficiary). (18) Because the policy is intended to provide a benefit only for specific family members, verifying the alleged family relationship is important in immigration law. (19) The assumption is that relatives are biologically related to the petitioners, with the exception of spouses and relatives who have been legally adopted. (20) Proof of relationship is usually established by submitting primary legal documents, such as marriage and birth certificates and adoption papers. (21) When primary documents are not available, secondary documents such as affidavits can be used. (22) Genetic testing is a tool currently available to U.S. immigration officers, but only in a very limited way. (23) Immigration officers cannot require genetic testing to establish a claimed biological relationship, (24) but "in situations where credible evidence is insufficient to prove the claimed biological relationship, officers may suggest and consider DNA testing results." (25) In other words, immigration officers may suggest DNA testing when documents are missing, fraud is suspected, or documentary information is incomplete or suspected of being incorrect. The decision to suggest testing is solely at the discretion of the immigration officer.

    1. Implementation of the DNA Testing Policy

      DNA testing policy was officially implemented on July 14, 2000, through an administrative memorandum written by Michael D. Cronin, then Executive Associate Commissioner of the United States Citizenship and Immigration Services (USCIS). (26) The goal of the memorandum was to "provide guidance" to the USCIS field offices about using DNA testing for parentage verification within the family reunification process. (27)

      The policy has several key facets. It states that testing is voluntary in that the immigration official may only suggest, not require, DNA testing. (28) The policy also cautions immigration officers that DNA testing should only be used when necessary. (29) Per the policy, DNA testing must be paid for by the petitioners. (30) The cost of the test may vary across laboratories. (31) Applicants must choose an accredited laboratory from a list provided by immigration officers, contact the chosen laboratory directly, and schedule the testing. (32) Once the immigration official in charge of the case receives the test results, he or she weighs the test results in the context of other evidence and makes a decision.

      Under the current policy, DNA testing essentially functions as the gold standard to validate the authenticity of the claimed relationship in cases where documents cannot validate it. (33) The usefulness of DNA testing as credible evidence of family ties is described in the policy with words like "a means of establishing the relationship." (34) To support the claim of a biological relationship, DNA test results have to show a probability of parentage or kinship equal to or greater than 99.5 percent, the standard threshold for proof. (35) While this threshold marks the standard, the policy also cautions immigration officers that "no parentage testing, including DNA testing, is 100 percent conclusive." (36)

      If the immigration official does not decide in favor of the petitioner on an application, the petitioner or the immigration lawyer has the right to appeal the decision to the Board of Immigration Appeals (BIA), (37) the highest administrative appellate body in the immigration system. (38) If the petitioner decides to appeal the BIA decision, he or she can pursue the case in federal court. (39)

      Based on a legal review of twenty-six family petition cases spanning from 2005 until 2009, there were two cases that involved the appeal of DNA test results to the BIA. (40) Both cases were resolved at the BIA and were not appealed to a higher court....

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